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©Malaysiakini (Used by permission)
by Beh Lih Yi

De facto law minister Mohd Nazri Abdul Aziz has fired yet another salvo against the Bar since he got himself embroiled in a war of words with the lawyers over the explosive ‘Lingam tape’.

This time he branded the lawyers as “crazy” for taking their dissatisfaction over the state of the judiciary to the government in a march dubbed as the ‘Walk for Justice’ two weeks ago.

“They’re all crazy lawyers - (to) go to the streets to ask the executive to interfere,” the minister said in an hour-long interview on the videotape controversy at his office in Parliament on Tuesday.

The minister in the Prime Minister’s Department overseeing legal and parliamentary affairs has earlier in the interview also likened the Bar to an opposition political party for organising the 2,000-strong march.

The unprecedented 3.5km march - from the Palace of Justice to the PM’s office in Putrajaya - was prompted by the revelation of an eight-minute video clip showing senior lawyer VK Lingam talking on the phone purportedly with Chief Justice Ahmad Fairuz Sheikh Abdul Halim.

Ahmad Fairuz, who was then chief judge of Malaya when the clip was said to be recorded in 2002, has since denied his involvement through Nazri, while Lingam has kept mum on the scandal.

It’s all a question of semantics

Nazri said his problem with the Bar Council - the professional body representing the country’s 13,000 lawyers - was not with its move to submit the memorandum to the government, but the manner in which it was done.

“This is just like when the Umno Youth demonstrated in front of the Myanmar embassy and the ambassador didn’t see them - it was only the second or third secretary,” said the minister, who is known for not mincing his words.

He contended that he could have organised a meeting between the Bar Council and Prime Minister Abdullah Ahmad Badawi, instead of the lawyers marching to the PM’s office to hand over the memorandum

In the interview, Nazri repeatedly claimed that the Bar Council was making a personal attack against Ahmad Fairuz in pushing for a probe on the Lingam tape “because they can’t get along” with the chief justice.

The minister appeared to flipflop on his stand several times during the interview, including whether the video clip’s whistleblower is required to come forward personally and whether a royal commission of inquiry be formed once the clip’s authenticity is verified.

Grilled on the limited terms of reference given to the three-man panel set up to probe the case instead of calling a royal commission of inquiry, Nazri said it was all a question of semantics.

“It is just the question of naming the committee - whether you name it as a committee or royal commission, it is the same thing - it is the government giving the power.”

He also denied the government was getting its priority wrong for going after the whistleblower of the Lingam tape.

“Don’t be mistaken, nobody is going after the whistleblower. We want to get the tape - that’s all. That’s why I am serious in talking about (that) we must protect the whistleblower,” he noted.

Despite Nazri has promised in the interview - which was done a day before the weekly cabinet’s meeting - that absolute immunity should be accorded to the whistleblower, the cabinet on Wednesday said it would not do so for now.

Bar's ‘insensitive’ proposal

On the calls for a judicial commission to appoint and promote judges, Nazri revealed the cabinet has never discussed the proposal although this has been made by the Bar Council previously.

However, he claimed the government could not introduce such changes unless the suggestion came from the judiciary itself.

He pointed out that the views of the Malay rulers must also be taken into account when considering the judicial commission proposal.

“I don’t think they are prepared to give up (their say in judicial appointment). It is insensitive for the Bar Council to do this. They should first talk to the rulers because they are questioning the little powers that they (rulers) have,” argued Nazri.

Under the Federal Constitution, the appointment of judges are made by the King, who act on the advice of the prime minister, after consulting the Conference of Rulers. The prime minister shall consult the chief justice before making such advice.

Nazri was non-committal when asked whether Abdullah will be meeting with the Bar Council as promised by the prime minister’s secretary at the end of the ‘Walk for Justice’ march.

“It was promised by the (premier’s) secretary, not the PM.”

Q&A: I can’t interfere, I am the executive

Beh Lih Yi

De facto law minister Mohd Nazri Abdul Aziz strenuously defended the government’s handling of the Lingam tape controversy in this hour-long interview with Malaysiakini. Below are excerpts:

Malaysiakini: Has the judiciary’s reputation been tarnished with the emergence of the video clip?

Mohd Nazri: Before we can say whether the image of the judiciary has been tarnished, we must (verify) the authenticity of the video clip. I have been made to understand that the video clip has been tampered (with by) reducing (the original clip) to a few minutes. Lawyers know that any tampered evidence is inadmissible in court. At the moment, I don’t think I can make a judgement on the judiciary before we (could verify) its authenticity.

But as reported, you have already ruled out a crisis in the judiciary.

The clip is not verified yet, so what crisis they (the Bar Council) are talking about? There is no crisis. I think it is all made up by the Bar Council because probably they are not happy with the CJ (Chief Justice Ahmad Fairuz Sheikh Abdul Halim).

If you are not happy with the individual, you shouldn’t change the (whole) system. It is a problem with the personality, nothing to do with the system. It is because they can’t get along with the CJ, then they are thinking how to change the system. I have many times told them to go engage the CJ, but they told me it is not possible. What can I do?

To me, as a lawyer, I really believe in the independence of the judiciary. The independence of the judiciary is to never allow the executive or the legislative to interfere in the judiciary. If our memory is still fresh, 20 years ago, we remember how the Bar Council members were very upset because the prime minister then, Tun (Dr) Mahathir (Mohamad) sacked the CJ (Salleh Abas, the post was then known as lord president). They were very upset because they perceived there was an interference by the executive in the judiciary.

This time around, they go to the streets to ask the prime minister to sack the CJ, which is asking for interference from the executive in the judiciary, I cannot accept that. I am asking the Bar Council not to ask my prime minister to take action against the CJ.

From the very beginning, I see no point at all (for taking it to the streets) because I have dealt with them on this before. They know they didn’t want to see me because they know they have met me and I have many times told them the government’s decision is ‘no’ with regards to the judicial commission.

I don’t mind them going to the PM (prime minister). Actually I wanted them to call me so I can facilitate (the meeting) for them. As honourable members of the Bar - I am also a lawyer by profession - I don’t want to see my fraternity to become like an opposition party. They can raise issues as members of the Bar, but they can’t be demonstrating in the street.

I wanted them to have at least call me so they can meet with the PM, have a one-hour discussion with the prime minister, and before they hand over the memorandum, we call a press conference. They must be received in the manner commensurate with their position in the society.

So you are not actually against the idea of giving the memorandum to the prime minister?

Yes. I may not agree with the memorandum but I would rather that they give the memorandum in a respectable manner. I don’t want them to demonstrate. The PM and DPM (Deputy Prime Minister Najib Abdul Razak) didn’t even see them and you hand over it to the political secretary.

This is just like when the Umno Youth demonstrated in front of the Myanmar embassy and the ambassador didn’t see them - it was only the second or third secretary. Umno Youth okay-lah, they are politicians, but lawyers, how can you just give (the memorandum) like that at the gate?

It will be unfair to say the Bar Council went on a personal campaign against the CJ for the fact that they did not name the CJ or ask action to be taken against the CJ in their memorandum. They were merely asking for a royal commission of inquiry to be set up and they want a thorough investigation into the video clip. The other thing is also the setting up of a royal commission will need the consent by the King based on the advice of the prime minister - that was why the Bar Council marched to the prime minister’s office.

This is not the point. We already have the system. If you are talking about a royal commission to appoint and promote judges, that is talking about a new system taking over the present system and that means interference. You cannot use the argument of having a royal commission to look into this (clip) when you are asking for a new system. A new system must get the consent from the judiciary.

How do we know whether the judges have not given their consent...

You talk to them-lah. I already told the Bar Council to go and persuade the judges. It is not for me to do it. I can’t interfere, I am the executive.

The current system itself has given room for executive interference since the prime minister is involved in recommending candidates.

No, he did not recommend. The names (of potential candidates) come from the judiciary. That’s why they are after the CJ - they are not angry with the PM because they know that the PM doesn’t have the names.

But the PM does have a say.

That is the system provided for by the Federal Constitution, which was discussed before independence and surely that would have taken care of the question on interference. We follow the British system and their judicial independence is very strong, how can we go wrong?

Even if you have a (judicial) commission, who appoint the commissioners? The PM, having advised the King, appoint the commissioners. If you want to talk about interference, that is interference there. The commissioners can’t be coming from the heaven.

They can be former judges.

Who will appoint? You think they can just come and say I am a former judge and therefore (I am a commissioner)?

You said the clip has been tampered with, meaning...

We have bene informed that the clip has been reduced from 14 to eight minutes. It’s been tampered with. To be admissible as evidence, it must be in its original form, it can’t be in shortened form. In court, it is not accepted. That’s why we require the person who taped it to come forward because he has the original one.

When you said ‘tampered with’, it may give rise to the impression that it has been doctored because in this case, the clip was separated into two parts.

If you go to court, it’s still inadmissible.

The government has formed the three-man panel to look into the authenticity of the clip which a lot of people said it may just be another whitewash.

People can say anything, they are free to say anything. Whatever we do, there is always adverse comment. We can’t be listening to these adverse comments. We just do what we feel is right to do.

The question is why the government spent so much effort to set up a panel...

Would it be better that we don’t set up any panel at all?

The question remains why the limited terms of reference given to the panel?

It has to be limited because we want to check on the authenticity of the video. Once it is verified then we can proceed to the next step.

What would be the next step?

If it is verified, then we have to set up a commission to look into it. I don’t know ... the cabinet has to decide after this.

A royal commission?

It can be anything ... I don’t know.

The authenticity of the clip can be easily verified with the experts that we have.

No, no, you still have to get the source, otherwise people will say the investigation is not complete. To me, I still think we need the original (clip), that’s why tomorrow (Oct 10 cabinet meeting) I will speak on this because we set up this panel and we want to investigate on its authenticity.

If the problem is because of protection (of the whistleblower) then I say we should give. I am sure (PKR de facto leader) Anwar Ibrahim’s case in asking for protection is not the first time. I am sure there are other informants before this have asked for protection and I am very sure that the police and the government have given protection.

There are such things that the government does give and that’s why I said if Anwar asks for protection, we should give because we want to get to the bottom (of the matter).

Giving the protection under which Act?

No, no, the government can do anything. (The protection is) actually in various Acts, the government can provide protection. It doesn’t have to be in any other Act.

For example, if you cite the Anti-Corruption Act, the protection under the Anti-Corruption Act is not as good as the one under the Commissions of Inquiry Act.

I know that. If the Act can give the power to the government to give protection - that’s why I am saying now that the government should come out and said ‘yes’, we will give you protection. It doesn’t have to be in any other Act - it’s (about) the government and its commitment.

But it has to be based on legislation.

If the government say ‘yes, we will guarantee his safety’, it is the government giving guarantee, what is wrong with that?

There must be something that empower the government to give that protection.

No, it doesn’t have to because what empowered us to set up the panel?

Yes, that is another question because people are questioning under which Act the panel is empowered to act?

Yes, but we can (form the panel). It doesn’t have to be in any Act. The government can set up the panel or committee because we are in power. We are not abusing the power.

There is no guiding principle because for instance when you have a royal commission, they know the limits of its power, what they can or can’t do under the Act. The panel doesn’t.

The power of the royal commission also come from us. We determine. Yes, we determine.

Yes, but still you have to follow whatever is given under the Commissions of Inquiry Act and it means at the end of the day, the government is still guided by something.

It is just the question of naming the committee - whether you name it as a committee or royal commission, it is the same thing - it is the government giving the power.

The panel chief Haidar Mohd Noor has said they can’t call witnesses or to extend protection, which means the panel is different from a royal commission.

The royal commission on police was tasked to look into the complaints against the police and that’s why they need to call witnesses, otherwise how would they know about the complaints. But this one is about the authenticity of the clip, that’s all. They don’t need to call witnesses. They just call the source to give (them) the original tape.

What if the source doesn’t come forward?

Tak boleh (cannot)... That’s why I said the government must give guarantee. The government can guarantee protection to that person. The government is powerful.

Say the whistleblower comes forward now with a government’s guarantee, but it won’t stop a third party - for example, the lawyer or the tycoon - to initiate legal action against the whistleblower later. But such immunity is given under the Commissions of Inquiry Act.

Cannot. This is what the government must do - must give protection including no action against the source in civil proceeding (in future). This is what we must guarantee because if we don’t, they (the panel) can’t do their job.

Again, but you said there is no need to have a royal commission.

I didn’t say that. But that’s the decision of the panel. Once we verify the authenticity and if the result is that it is a genuine tape, then after that we set up a royal commission and they can start calling (witnesses). This (panel) is just a first step.

Is the government serious about judicial reform?

Of course, we are serious. We have to settle this problem first. If it turns out that the video clip is not authentic, there is no case at all. What is there to talk about?

Granted, but why is the government seems like getting its priority wrong by going after the whistleblower?

Don’t be mistaken, nobody is going after the whistleblower. We want to get the tape, that’s all. That’s why I am serious in talking about (that) we must protect the whistleblower. If the whistleblower is scared, he can give it to somebody and say ‘this is the real tape’.

So the whistleblower may not necessary have to come forward?

Whatever way.

The authority just want the full clip?

Yes, original, because I can’t be taking (the clip) from your Malaysiakini.

As we know, so far the whistleblower has not come forward. How is the panel to proceed and to complete their task?

You have to ask them, I don’t know.

Knowing Malaysians, the issue probably may just die down...

Who’s fault is that? It’s not the government’s - the fault is on Malaysians.

Given the implications from the clip, even lawyers go on the streets, which shows...

They’re all crazy lawyers - (to) go to the streets to ask the executive to interfere. (We should) never ever give the impression that the executive can interfere. I am from the executive and the other part of me I am a lawyer - I know about the judiciary.

Any idea when the PM going to meet with the Bar Council as promised when the memorandum was handed over?

It was promised by the (premier’s) secretary, not the PM.

How do you see the Bar Council’s activism lately?

They are free to do whatever they want to do. I got no problem. But do not be upset if whatever request they made is not accepted. When you ask for something, it will be either accepted or rejected, but either way you must be professional. We - the government - are in power to discuss, so when we make decision, please don’t be upset.

The nature of the profession of lawyers is to argue cases in court. All this time, they fight in court and once decision is made, they should not feel personal about the court. So I can’t understand if the government consider their case and decide against them - they shouldn’t feel personal. Sometimes you win, sometimes you lose.

In the case of the judicial commission, was the proposal seriously discussed in cabinet or just in brief?

It is the first time they sent the memorandum, so I don’t know tomorrow the PM will... But so far we don’t discuss, we never discussed.

But you have said it many times - at a Bar Council forum too - that the government is not keen on the idea of having a judicial commission.

That is the reply I got when answering (questions) in Parliament. The reply must comes from government or the PM’s office. I reply in accordance to what has been provided.

It is not a cabinet’s decision?

This is official reply. It is something which we think we don’t have to talk about because maybe we are happy with the present system.

People would have expected you to raise this proposal at the cabinet.

DPM has said at the moment (we don’t need a judicial commission).

That’s on the royal commission of inquiry.

Why is that the DPM said the same thing - when I said, (it) is wrong, (and when the) DPM said, it is okay?

Since you assumed the legal portfolio, we understand that you have pushed for certain changes such as the amendment for Section 46A of the Legal Profession Act. But on judicial commission, why don’t you consider the interest of the Bar?

I agree. I told them I have no problem at all but if you want me to assist, it (the consent) must come from the judiciary. (They) must remember this (current) system includes the consultation with the Malay rulers and when you want to have a (judicial) commission, you are taking (away) their power in having a say.

Of course, if you have talked to the judges and they are okay (with a judicial commission), the PM will be okay too. Judges have their annual conference. If they come out with a resolution they all have consented to the judicial appointment system to be changed, then give us the resolution and we proceed with the process. But it must come from the judges, otherwise it is interference.
When you want to change this system, don’t forget you have to talk to the Malay rulers. I don’t think they are prepared to give up (their say in judicial appointment). It is insensitive for the Bar Council to do this - they should first talk to the Rulers because they are questioning the little powers that the (Rulers) have.

They would not allow us to interfere in religious matters or appointment of religious officials (mufti). When we wanted to standardise the Islamic laws in various states, certain rulers said no. It’s not that easy.

You used to be in practice, and now the de facto law minister. In handling your work, you consider yourself as a lawyer first or politician first?

I must be a politician first. I am a minister, I must take care of the interest of the government.

The needs of the lawyers may not necessary be the government’s. Lawyers will look at thing from their point of view. Of course, if I am not in the government, probably I will understand what they want. Now I am a minister I have to look at the bigger picture.

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